Date: 19990421
Dossier: A-265-97
Coram : DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between : MERCK FROSST CANADA INC.
- and -
MERCK & CO., INC.
Appellants
(Applicants)
AND
THE MINISTER OF NATIONAL HEALTH AND WELFARE
- and -
APOTEX INC.
Respondents
(Respondents)
Heard at Montreal, Quebec on Wednesday, April 21, 1999
Judgment delivered from the Bench at Montreal, Quebec
on Wednesday, April 21, 1999
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date : 19990421
Docket : A-265-97
(T-1305-93)
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
MERCK FROSST CANADA INC.
- and -
MERCK & CO., INC.
Appellants
(Applicants)
AND
THE MINISTER OF NATIONAL HEALTH AND WELFARE
- and -
APOTEX INC.
Respondents
(Respondents)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montreal (Quebec)
on Wednesday, April 21, 1999.)
DÉCARY J.A.
[1] This appeal relates to proceedings undertaken by the appellants under the Patented Medicines (Notice of Compliance) Regulations1 as they stood in 1993.
[2] On June 1, 1993, the appellants sought to prevent the Minister of National Health and Welfare ("the Minister") from issuing to the respondent Apotex Inc. a Notice of Compliance for the medicine lovastatin. As a result of a long judicial battle, the appellants asked a judge of the Trial Division of the Federal Court, on February 11, 1997, for a retroactive extension of the 30-month delay prescribed by paragraph 7(1)(e) of the Regulations.
[3] On March 26, 1997, Rothstein J., as he then was, dismissed the application on the ground, inter alia, that the Court was without jurisdiction to issue a prohibition order under subsection 6(2) of the Regulations and was without jurisdiction to extend time under subsection 7(5) after expiry of the statutory stay.
[4] The Minister then issued the Notice of Compliance.
[5] The appeal is obviously moot, the Minister having done what he is empowered to do under subsection 7(1) of the Regulations, i.e. he issued a Notice of Compliance.
[6] Furthermore, we do not believe that we should exercise our discretion to hear the appeal despite its mootness for the following reasons:
| 1. The Regulations adopted in 1993 were altered in 19982 in a significant manner at least in so far as the text of subsection 7(5) is concerned. There would be little, if any purpose in spending judicial resources to interpret Regulations that are no longer in force. |
| 2. The circumstances of this case, as noted by the trial judge at page 9 of his reasons and as conceded by the appellants in their memorandum of fact and law, are "unusual" and "exceptional". |
| 3. There is no evidence of any pending case that could benefit from a decision of this Court in this appeal. |
| 4. The appellants do not come to this Court with clean hands. They waited eighteen months before filing their memorandum of fact and law, despite the fact that the regulatory scheme requires the parties to act as expeditiously as possible. |
[7] The appeal will therefore be dismissed on the ground of mootness. The respondent Apotex Inc. shall be entitled to its costs on the appeal.
Robert Décary
J.A.
FEDERAL COURT OF APPEAL
Date: 19990421
Docket: A-265-97
Between :
MERCK FROSST CANADA INC.
- and -
MERCK & CO., INC.
Appellants
(Applicants)
AND
THE MINISTER OF NATIONAL HEALTH
AND WELFARE
- and -
APOTEX INC.
Respondents
(Respondents)
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NUMBER: A-265-97
STYLE OF CAUSE: MERCK FROSST CANADA INC.
- and -
MERCK & CO., INC.
Appellants (Applicants)
AND
THE MINISTER OF NATIONAL HEALTH
AND WELFARE
- and -
APOTEX INC.
Respondents (Respondents)
PLACE OF HEARING: Montreal, Québec
DATE OF HEARING: April 21, 1999
REASONS FOR JUDGMENT OF THE COURT (DÉCARY, LÉTOURNEAU and NOËL,
JJ.A.) DELIVERED FROM THE BENCH BY:
Décary J.A.
DATED: April 21, 1999
APPEARANCES:
Mr. Brian Daly/ for the Appellants
Mr. Robert Charlton
Mr. H.B. Radomski/ for the Respondent
Mr. Andrew Brodkin (Apotex Inc.)
Page: 2
SOLICITORS OF RECORD:
Ogilvy Renault for the Appellants
Montreal, Québec
Goodman, Phillips & Vineberg for the Respondent
Toronto, Ontario (Apotex Inc.)
Morris Rosenberg for the Respondent
Deputy Attorney General of Canada (Minister of National Health and Welfare)
Ottawa, Ontario
__________________
1 SOR/93-133.
2 SOR/98-166.